The Court of Appeal has held in Independent Workers’ Union of Great Britain v the Central Arbitration Committee and anor that Deliveroo drivers are not able to rely on article 11 rights (which provide for freedom of association) under the European Convention on Human Rights (ECHR) in order to establish compulsory union recognition.
The case first started when the Independent Workers’ Union of Great Britain (IWGB) applied to the Central Arbitration Committee (CAC) under the compulsory recognition procedures in Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) for the right to collectively bargain on behalf of a group of Deliveroo riders in North London.
Schedule A1 states that unions can seek recognition on behalf of a group or groups of “workers”.
Section 296 sets out the definition of a worker as being an individual who works under a contract of employment or “under any other contract whereby he [sic] undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his”.
Decisions of lower courts
The CAC rejected the application (weekly LELR 555) on the basis that trade unions can only apply if the group for which they seek recognition are all “workers” in accordance with the definition of “worker” under section 296. It held that the drivers did not meet this definition because the terms under which they were engaged did not require them to do the work personally and permitted the use of substitutes.
The union then sought to judicially review that decision in the High Court (weekly LELR 605) but were only granted permission to proceed on one ground, namely that the CAC was wrong not to address the union’s arguments in respect of article 11.
The union had argued, with regard to article 11, that collective bargaining rights require an interpretation of the definition of “worker” to ensure that they are not excluded from the compulsory recognition procedures. The High Court however dismissed the application at the substantive hearing stating that article 11 was not engaged as the riders were not in an “employment relationship” and were not workers.
Decision of Court of Appeal
Agreeing with that decision, the Court of Appeal (weekly LELR 728) concluded that the drivers did not fall within the scope of trade union freedom rights under article 11.
It emphasised that there was an important distinction between the right to organise generally and the right to organise as a trade union with the particular protections that the latter affords workers which were enshrined through case law in the European Court of Human Rights (ECtHR).
The Court of Appeal stressed that the ECtHR had already decided that the latter right need not necessarily be enjoyed by the self-employed. It could not interfere with the reasoning in this case that the drivers were self-employed as that issue had been determined by the CAC and no permission to appeal against that finding had been granted by the High Court. It was therefore not an issue in dispute in the proceedings that it had to determine.
The court made very clear in this judgment that it was important to appreciate the limited basis on which the IWGB’s appeal was entitled to proceed. There was no challenge under domestic law about the status of the workers before the Court of Appeal. Clearly the outcome may have been different if the Court of Appeal had been entitled to interrogate how that conclusion had been reached particularly in light of the Supreme court decision in Uber BV v Aslam and ors (weekly LELR 717).